Citation NR: 9730923
Decision Date: 09/09/97 Archive Date: 09/11/97
DOCKET NO. 92-11 517 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to an increased rating for retinitis of the left
eye with light perception, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Theresa M. Catino, Associate Counsel
INTRODUCTION
The veteran served on active military duty from December 1954
to March 1957.
In an April 1990 statement, the veteran raised the issues of
entitlement to service connection for a heart disability,
multiple sclerosis, arthritis, a nervous disorder, and a skin
condition. In an April 1991 statement, the veteran asserted
that he experienced high blood pressure and a heart
condition. In the following month, the RO asked the veteran
to clarify the specific type of skin disorder for which he
sought service connection as a result of radiation exposure.
The veteran failed to respond to this letter.
Nevertheless, the veteran has raised the issues of
entitlement to service connection for a heart disability,
hypertension, multiple sclerosis, arthritis, a nervous
disorder, and a skin condition. The Board notes that, in an
April 1970 rating decision, the RO denied service connection
for a nervous disorder. The claims of entitlement to service
connection for a heart disability, hypertension, multiple
sclerosis, arthritis, and a skin condition as well as the
issue of whether new and material evidence has been submitted
to reopen the claim of entitlement to service connection for
a nervous disorder are not inextricably intertwined with the
current appeal and are, therefore, referred to the regional
office (RO) for appropriate action.
Further review of the claims folder indicates that, in August
1996, the RO denied the claim of entitlement to special
monthly pension based on the need for the regular aid and
attendance of another person or on the basis of housebound
status. In the same month, the RO notified the veteran of
this denial. In the following month, the RO received the
veteran’s notice of disagreement with the denial of this
issue. In February 1997, the RO furnished the veteran with a
statement of the case regarding the claim. In addition, the
RO supplied the veteran with a VA Form 9, Appeal to the Board
of Veterans’ Appeals, and informed him that he must file his
appeal within 60 days from the date that the statement of the
case was furnished to him or within the remainder, if any, of
the one-year period from the date of the letter notifying him
of the denial of his claim. In the following month, the
veteran requested 60 days to submit additional evidence
“in . . . [case].” The veteran did not specify his special
monthly pension claim. The claims folder does not contain
any additional evidence or a substantive appeal regarding
this issue. Therefore, it is not before the Board.
REMAND
In November 1992, the Board remanded the veteran’s claim for
an increased rating for his service-connected left eye
disability for development of the inextricably intertwined
issue of entitlement to service connection for a right eye
disorder. However, in a statement of March 7, 1997, the
veteran asked that his appeal for service connection for a
right eye disability be canceled. Accordingly, that issue is
no longer before the Board. In the November 1992 remand, the
Board asked the RO to schedule the veteran for an examination
by a specialist in ophthalmology. The Board requested that
the physician conducting the evaluation determine the visual
acuity in the veteran’s right eye and to comment specifically
on the criteria set forth at 38 C.F.R. § 4.79.
Review of the claims folder indicates that the veteran was
accorded VA eye examinations in March 1993, May 1994, and
March 1996. According to the reports of these evaluations,
the examiners did not appear to have discussed the criteria
set forth at 38 C.F.R. § 4.79. The Board acknowledges that
the examiner conducting the May 1994 examination noted that
“[a]lthough the loss of vision is possibly not as profound as
alleged by the patient, he is within the criteria for legal
blindness.” However, the examiner did not specify the
veteran’s eye which satisfied the criteria for “legal
blindness.” In any event, for the purposes of 38 C.F.R.
§ 3.383, a veteran must be blind in both eyes under VA’s
criteria for total blindness.
The March 1993 VA eye examination demonstrated light
perception in near vision of the veteran’s right eye and no
light perception in the far vision of his right eye.
However, the examiner expressed his opinion that the visual
acuity in the veteran’s right eye did not correlate with the
examination findings. Furthermore, although at a May 1994 VA
outpatient visit vision in the veteran’s “better” eye was
shown to be 20/200, which met the criteria for legal
blindness, his behavior was not found to be that of a
“totally blind person.” In addition, no light perception in
the far vision of the veteran’s right eye was demonstrated at
a VA eye examination conducted in March 1996. Light
perception in the near vision of the veteran’s right eye was
not tested. Importantly, however, the examiner concluded
that the evaluation showed “[n]o evidence of pathology in . .
. [the right eye] to explain [its] . . . visual acuity.”
Clearly, the eye examinations conducted since the Board’s
November 1992 remand have demonstrated conflicting findings.
Moreover, these evaluations failed to provide the information
necessary to adjudicate the increased rating claim for the
veteran’s service-connected left eye disability. The United
States Court of Veterans Appeals (Court) has upheld the
provisions of 38 C.F.R. § 4.2, which provide that, if an
examination report does not contain sufficient detail, it is
incumbent upon the rating board to return the report as
inadequate for evaluation purposes. Ardison v. Brown,
6 Vet.App. 405, 407 (1994); Abernathy v. Principi,
3 Vet.App. 461, 464 (1992).
Moreover, according to the July 1993 report of the VA field
visit, the veteran reported that he had been receiving Social
Security benefits since 1969 due to “blindness and other
conditions.” A copy of the notification of this award, as
well as the supporting documents, are not included in the
claims folder.
Accordingly, the case is remanded to the RO for the
following:
1. The veteran should be contacted and
requested to furnish a complete list of
all medical personnel and facilities from
which he has received treatment or
evaluation for either eye since 1992.
Any health care providers named by the
veteran, from whom records have not
already been received, should be
contacted (after the appropriate releases
from the veteran are obtained where
necessary), and requested to provide
copies of all medical records in their
possession pertaining to the veteran. If
these records are unavailable, that fact
should be annotated in the claims folder.
Any available records should be
associated with the claims folder.
2. In addition, the RO should obtain
from the Social Security Administration a
copy of the decision which awarded
disability benefits to the veteran as
well as a copy of the record, including
all medical reports, used as a basis for
this grant. Reports of any periodic
examinations or evaluations after the
initial grant of benefits also should be
obtained.
3. Thereafter, the veteran should be
accorded a VA examination by a specialist
in ophthalmology to determine, primarily,
whether he is totally (and not just
legally) blind in both eyes. Although
the veteran has withdrawn his claim for
service connection for a right eye
disability, the status of his right eye
vision is important in determining
whether he meets the requirements of
38 C.F.R. § 3.383 regarding disability of
paired organs. In notifying him of his
scheduled examination, he should be
advised of the potential consequences of
failing to report for the examination
without good cause. The claims folder,
and a copy of this remand, must be made
available to the examiner, the receipt of
which should be acknowledged in the
examination report. Any available
diagnostic tests that would assist in
accurately assessing the status of the
veteran’s vision, including in his right
eye, should be conducted, on a fee basis
if necessary. The examiner should review
the results of any testing prior to
completion of the report. All findings
should be reported in detail. The
examiner must comment on the criteria set
forth at 38 C.F.R. § 4.79 (the
ability/inability to recognize test
letters at one foot/.30 m. as well as the
ability/inability to perceive objects,
hand movements, or counting fingers at
three feet/.91 m., visual acuity of 5/200
or less, or visual field reduced to 5
degrees concentric contraction) in
respect to each eye. If there is no eye
pathology or other medical factor to
account for the claimed decreased vision
in the right eye, the examiner must so
state. In that regard, the prior VA
examination reports and outpatient
records must be reviewed before an
opinion is rendered, and the examiner
must provide complete rationale for all
opinions expressed. It is essential that
the report be legible.
4. The RO should review the examination
report and determine if it is adequate
for rating purposes and in compliance
with this remand. If not, it should be
returned to the examiner for corrective
action. It is essential that all
questions posed by the Board be addressed
in order for the report to be adequate.
5. When this development has been
completed to the extent indicated or
possible, the RO should re-adjudicate the
issue of entitlement to an increased
disability evaluation for retinitis of
the left eye with light perception. The
provisions of 38 C.F.R. § 3.383 should be
considered and applied if warranted by
the credible, competent evidence.
If the benefit sought on appeal is not granted, the veteran
and his representative should be provided with an appropriate
supplemental statement of the case that includes any
additional pertinent law and regulations and afforded a
reasonable period of time in which to respond. Thereafter,
the case, in accordance with the current appellate
procedures, should be returned to the Board for further
appellate review.
The purpose of this remand is to obtain clarifying evidence.
No action is required of the veteran until he receives
further notice. By this remand, the Board intimates no
opinion as to the final outcome of the veteran’s claim.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JANE E. SHARP
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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